IN THE
TENTH COURT OF APPEALS
No. 10-00-059-CV
     NEIL CHUR, ET AL.,
                                                                              Appellants
     v.
     NINFA LOERA, ET AL.,
                                                                              Appellees
From the 82nd District Court
Robertson County, Texas
Trial Court # 99-09-15,831-CV-A
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MEMORANDUM OPINION
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      On December 7, 2000, the parties filed a motion to âvacate and render judgment pursuant to settlement.â They ask that we dismiss this action with prejudice. In relevant portion, Rule 42.1 of the Texas Rules of Appellate Procedure provides:
(a) The appellate court may dispose of an appeal as follows:
(1) in accordance with an agreement signed by all parties or their attorneys and filed with the clerk;
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(2) in accordance with a motion of appellant to dismiss the appeal or affirm the appealed judgment or order; but no party may be prevented from seeking any relief to which it would otherwise be entitled.
Tex. R. App. P. 42.1(a).
      The motion states that all matters in controversy have been amicably compromised and settled. It is signed by attorneys for both parties.
      Therefore, under the authority of Rule 42.1, the judgment is vacated and the case is dismissed. Id.; see also Tex. R. App. P. 43.2(e). Costs are taxed against the party incurring them.
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                                                                         PER CURIAM
Before Chief Justice Davis,
      Justice Vance, and
      Justice Gray
Dismissed
Opinion delivered and filed December 20, 2000
Do not publish
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                                                                    Appellee
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From the 44th District Court
Dallas County, Texas
Trial Court # DV00-02808-B
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Opinion
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         Alice and Lloyd Kofahl filed this slip-and-fall case against RandallÂs Food & Drugs, formerly dba Tom Thumb Food & Drugs, after Alice slipped in an unidentified liquid on the groceryÂs floor, fell, and broke her hip. The trial court granted RandallÂs no-evidence summary judgment motion which alleges that the Kofahls can produce no evidence that RandallÂs had actual or constructive knowledge of the spilled liquid.Â
         The Kofahls contend in four issues that the court erred by granting the summary judgment because: (1) RandallÂs can be held liable under Âthe Corbin rule due to inadequate safety policies and procedures regardless of whether it had actual or constructive knowledge of the spill; (2) RandallÂs Âcreated unreasonably dangerous premises by failing to have adequate policies and procedures; (3) they presented more than a scintilla of evidence that the spill had been on the floor long enough to charge RandallÂs with constructive knowledge; and (4) they should not be required to prove actual or constructive knowledge under the facts of this case. The Kofahls contend in an additional issue that the court should have permitted further discovery regarding RandallÂs policies and procedures.
         RandallÂs contends in a cross-issue that, regardless of the merits of AliceÂs claim, the judgment must be affirmed as to Lloyd because the Kofahls have not presented a separate issue challenging the judgment with respect to LloydÂs claim.
         Because the Kofahls presented more than a scintilla of evidence that the liquid had been on the floor long enough to give RandallÂs constructive knowledge of its presence and because RandallÂs did not present an Âindependent ground for summary judgment on LloydÂs claim, we will reverse and remand.
CONSTRUCTIVE KNOWLEDGE
         The Kofahls contend in their third issue that they presented more than a scintilla of evidence that the liquid had been on the floor long enough to charge RandallÂs with constructive knowledge of its presence. Under settled premises liability law, if the premises owner did not place the substance in question on the floor and did not have actual knowledge of its presence, the plaintiff must establish that Âit is more likely than not that [the substance was on the floor] long enough to give the premises owner a reasonable opportunity to discover it. Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814 (Tex. 2002).
         Alice provided deposition testimony that the edges of the Âlarge puddle of liquid she slipped in were Âvery tacky and gummy as if the puddle was Âstarting to dry up. Although our research has not disclosed any recent cases addressing this type of evidence, it has been held that this type of testimony will support a finding that a liquid on the floor has been there for a sufficient length of time to charge the premises owner with constructive knowledge of its presence.[1] See Kroger Stores, Inc. v. Hernandez, 549 S.W.2d 16, 16-17 (Tex. Civ. App.ÂDallas 1977, no writ); FurrÂs, Inc. v. McCaslin, 335 S.W.2d 284, 286-87 (Tex. Civ. App.ÂEl Paso 1960, no writ); FurrÂs, Inc. v. Bolton, 333 S.W.2d 688, 689-90 (Tex. Civ. App.ÂEl Paso 1960, no writ). Even those these decisions are not recent, more recent decisions of the Supreme Court seem to affirm their continuing validity. See e.g. Reece, 81 S.W.3d at 817 (affirming judgment in part because there was no Âevidence concerning the condition of the spilled liquid that might indicate how long it had been thereÂ); Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 937 (Tex. 1998) (affirming judgment in part because there was no evidence Âthat the dirt on the macaroni salad had dried, suggesting that it had been there for a prolonged period of timeÂ).
         RandallÂs cites a number of cases to support its contention that AliceÂs testimony constitutes no more than a mere scintilla of evidence to establish constructive knowledge. See Richardson v. Wal-Mart Stores, Inc., 963 S.W.2d 162 (Tex. App.ÂTexarkana 1998, no pet.); Safeway Stores, Inc. v. Harkless, 601 S.W.2d 534 (Tex. Civ. App.ÂTyler 1980, writ refÂd n.r.e.); Robledo v. Kroger Co., 597 S.W.2d 560 (Tex. Civ. App.ÂEastland 1980, writ refÂd n.r.e.); Franklin v. Safeway Stores, Inc., 504 S.W.2d 514 (Tex. Civ. App.ÂDallas 1973, writ refÂd n.r.e.); FurrÂs Supermarkets, Inc. v. Arellano, 492 S.W.2d 727 (Tex. Civ. App.ÂEl Paso 1973, writ refÂd n.r.e.).
         Unlike the Kofahls, the plaintiffs in most of the cases cited by RandallÂs presented evidence of a liquid on the floor but failed to present any evidence that the liquid had begun to dry. See Richardson, 963 S.W.2d at 164-65 & n.1; Harkless, 601 S.W.2d at 537-38; Robledo, 597 S.W.2d at 560. In some of the cases cited, the plaintiffs presented evidence that the liquid was dirty or had shopping cart tracks running through it. See Harkless, 601 S.W.2d at 537-38; Robledo, 597 S.W.2d at 560. However, this type of evidence has consistently been considered inadequate to establish constructive knowledge. See Gonzalez, 968 S.W.2d at 937; Harkless, 601 S.W.2d at 537-38; Robledo, 597 S.W.2d at 560-61.
         In Franklin, the plaintiff testified that she slipped in a Âdry syrupy looking substance. 504 S.W.2d at 517. The court concluded that this testimony was inadequate to establish constructive knowledge because it did not account for the fact that the substance may have been Âdry and Âsyrupy when it spilled. Id. (citing Bolton, 333 S.W.2d at 690). Here however, Alice testified that the liquid in which she slipped and fell was drying around the edges, not that it was the same consistency throughout. See Bolton, 333 S.W.2d at 690.
         For the foregoing reasons, we conclude that the authorities relied on by RandallÂs do not apply to the facts of this case. Thus, we hold that the Kofahls presented more than a scintilla of evidence to show constructive knowledge. See Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003) (nonmovant must produce more than a scintilla of evidence to defeat no-evidence summary judgment motion).
         Accordingly, we sustain the Kofahls third issue.
BECAUSE RANDALLÂS DID NOT ASSERT AN ÂINDEPENDENT GROUNDÂ
FOR SUMMARY JUDGMENT ON LLOYDÂS CLAIM, WE WILL
REVERSE THE JUDGMENT ON LLOYDÂS CLAIM AS WELL
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RandallÂs contends in its sole cross-issue that, notwithstanding our disposition of the Kofahls third issue, we must affirm the judgment as to LloydÂs claim for loss of consortium because the Kofahls have not presented a separate issue on appeal challenging Âthe summary judgment ground addressed to [LloydÂs] claims.Â
Â[W]hen an appellant does not properly challenge each independent ground asserted for summary judgment as to a claim, the claim will be affirmed.ÂÂ City of Glenn Heights v. Sheffield Dev. Co., 55 S.W.3d 158, 163 (Tex. App.ÂDallas 2001, pet. denied); accord Wrenn v. G.A.T.X. Logistics, Inc., 73 S.W.3d 489, 493 (Tex. App.ÂFort Worth 2002, no pet.).
RandallÂs summary judgment motion states:
                  Defendant moves for summary judgment on the ground that there is no evidence of an essential element of Plaintiff Alice KofahlÂs negligence claim on which she will have the burden of proof at trial. Specifically, there is no evidence regarding whether Defendant knew or should have known of a premises condition which posed an unreasonable risk of harm to Mrs. Kofahl. Therefore, Defendant is entitled to judgment as a matter of law on this claim. Defendant further moves for summary judgment on Plaintiff Lloyd KofahlÂs loss of consortium claim on the ground that such claim is wholly derivative of his wifeÂs claim. Because her claim must fail as a matter of law, Mr. KofahlÂs claim must likewise fail.
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From this quoted excerpt, it is apparent that RandallÂs ground for summary judgment as to LloydÂs claim depends entirely on a favorable finding on its ground for summary judgment on the issue of constructive knowledge. Therefore, it cannot be properly characterized as an Âindependent ground for summary judgment. Cf. Wrenn, 73 S.W.3d at 493; City of Glenn Heights, 55 S.W.3d at 163. Accordingly, we overrule RandallÂs sole cross-issue.
Because of our disposition of these issues, we need not address the remainder of the issues presented. We reverse the judgment and remand this cause to the trial court for further proceedings consistent with this opinion.
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FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray dissenting)
Reversed and remanded
Opinion delivered and filed October 27, 2004
[CV06]
   [1]         Notably, our research has disclosed no cases (recent or otherwise) concluding that such evidence is inadequate to show constructive knowledge.